Linux users protest DVD regs on Capitol Hill

An affable group of Linux users from New York City and the Washington DC area converged on Capitol Hill this week, patiently explaining to passers-by that the Digital Millennium Copyright Act (DCMA) is a serious setback for consumers, and hoping to attract the Librarian of Congress' attention as he participated in hearings on the hastily-drafted and quite controversial law.

Members of the New York Linux Users Group (NYLUG), the Washington DC Linux Users Group (DCLUG) and the Northern Virginia Linux Users Group (NOVALUG) staged a three-hour appearance at the steps of the Library of Congress to publicise their disapproval of a law which makes it illegal for owners of a DVD disk to access its contents on players of their own choosing or devising.

Fair Use Redefined

It has long been established in the US that the legal purchaser of copyrighted material may duplicate it on different media for personal use. One might, for example, copy a music CD to an audio cassette for playback on one's Walkman. This is covered under the 'fair use' exceptions to copyright protections, which extend to numerous other areas such as the right of a journalist, writer or scholar to publish excerpts of copyrighted material for argumentation, analysis or criticism.

This ought not to be a problem, as the DCMA states quite explicitly that, "Nothing in this section shall affect rights, remedies, limitations, or defences to copyright infringement, including fair use."

So far so good. But the Act also empowers copyright holders to install technical access controls - ostensibly to protect themselves from piracy - but which make a mockery of its own fair use guarantee, and even make it a crime for consumers to circumvent such controls in an effort to exercise their right of fair use.

This is particularly relevant in the case of DVDs. As things are currently set up, the movie industry maintains a tight grip on DVD players, whether physical or virtual. Players must be licensed to work under the DVD CSS encryption scheme. The DCMA makes cracking the scheme a crime, so it's illegal for users to copy legally-purchased content in another format for personal use, as the fair use exception allows.

Thus the Act contradicts itself, stating that, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title," and so making it illegal for the legitimate purchaser of a DVD to copy the content they have paid for in a format not licensed by the industry, and thereby thwarting his efforts to exercise the very fair use which the DCMA purports to vouchsafe.

This would not be a problem if the CSS encryption scheme could be used in a targeted manner to prevent piracy, but it can't. It can only be used to restrict access to the material, wherein lies a can of worms threatening consumers' rights of fair use, and potentially yielding to the industry a weapon which it can abuse in a number of ways.

"In order to license DVD CSS, you've got to agree to the industry's terms. They've got a cartel, and a law backing them up," NOVALUG's David Neimi told The Register.

"Access controls are too general. They're not limited [by the DCMA] to restricting material that people aren't supposed to get at." According to the Act, "access controls can be for any purpose whatsoever, arbitrarily decided by the copyright holder," Neimi said.

The real fear here is that if broad access controls should be continually upheld by the courts, and survive as a means of protecting copyrights, it will be a short step for the MPAA to introduce a pay-per-use scheme for DVD content as it gradually phases out physical DVD disks in an increasingly wired and web-enabled world.

A Monopoly in the Making

Controlling access to content via encryption and specially licensed players is a sloppy substitute for copyright protection with side effects reaching far beyond the simple matter of deterring piracy. It means, for example, that users are unable to make their own home-movie DVDs and watch them on a standard player. More importantly, it means that independent filmmakers who might wish to release their work in DVD format will be unable to produce work viewable on standard players without first obtaining the required industry licenses.

This obstacle not only allows Hollywood to restrict access to the material it distributes; it also means that the MPAA can influence the very range of content available to consumers. The DCMA gives the movie industry power to control film distribution, which it is free to abuse secure under the aegis of a law purporting to protect its copyrights.

Because the act also makes it a crime to "manufacture, import, offer to the public... any technology, product, service, device, component or part... for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner," a filmmaker who distributes his own work in DVD format would be forced to break the law. He would have to crack the DVD CSS crypto scheme so that consumers could view his work on their standard, licensed players.

"The Motion Picture Association of America (MPAA) wants complete control over the licensing and production of DVD players," Neimi says. I'm convinced that their real plan is to control the distribution of movies."

"If you're an independent filmmaker, you have to go through [the MPAA] to get your movies produced in a form that will be read by standard DVD players."

Indeed, the DCMA is written so sloppily that our hypothetical filmmaker would have to choose between playing by the MPAA's rules, or violating the movie industry's copyrights, even though he owns the rights to the work he's distributing.

"A technological measure 'effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work," the Act states.

Thus the DCMA permits the use of technological access controls to protect copyrights. The problem is that access controls can be perverted to do enormously more than that. Surely this is an unintended loophole, but it is one that the movie industry has already exploited shamelessly, and, what is far worse, defended persuasively in the courts. If the current appeals process ultimately fails to bring the DCMA into a rational form, it may eventually fall to the Department of Justice to realise that that the Act is a recipe for the illegal monopolisation of film content, especially in the greedy, opportunistic hands of an organisation like the MPAA.

MPAA Doublespeak

There have been efforts to wrest control from the MPAA, most notably with the development of DeCSS, a utility programme which enables a user to bypass the encryption and access DVD content on an unauthorised player. So long as this is done by a person who has already purchased a DVD, and strictly for their own use, it should fall under the fair use exception that the DCMA bleats about protecting.

The US courts thus far have chosen to ignore the fair use proviso, and focused solely on MPAA rhetoric claiming that the utility would allow widespread piracy of DVD content, though in practical terms, a bootlegger would be hard pressed to turn a profit selling pirate copies of DVDs whose legitimate copies sell for a mere $20-$30, when the cost of the blank medium, or bandwidth charges for Internet distributors, is brought into account.

Nevertheless, back in January New York District Judge Lewis Kaplan and Santa Clara County Judge William Elfving both issued injunctions barring Web sites from offering DeCSS for download, ruling in favour of the MPAA which argued that the programme is sure to promote piracy.

All right, we admit that DeCSS will promote piracy; but we think the risk, at least for North America and Western Europe, has been exaggerated, and that fair use has got to be protected regardless of that potential.

The MPAA does have a valid point concerning Russia, China, South Korea and Taiwan, where pirate copies of Western movies and music outnumber legal copies by at least a hundred to one, and the production of pirate DVDs is likely to be profitable because legitimate copies are hard to come by. But we think the MPAA could solve its own problem there, and do us all a service in the bargain, by unleashing its formidable lobbying power on the office of the US Trade Representative, and seeking to dismantle the 'non-tariff trade barriers' these countries are allowed to hide behind, and which effectively keep the legitimate product out of their markets.

But piracy or no piracy, for Linux there is no authorised DVD player, so DeCSS is the only recourse for a Linux user who has bought a DVD disk and wishes to exercise his right of fair use by watching it on his computer. Unfortunately, the programme remains a contraband item, and Web sites remain prohibited from making it available.

The MPAA, apparently, would rather criminalize DeCSS users and purveyors, and burn its own legal budget persecuting Webmasters and hackers, than work on developing a Linux player.

"The MPAA is scared of open source," NYLUG President Jim Gleason told The Register. "There needs to be a dialogue so they can get the protection they need, and we can get the products we need."

We're satisfied that the Linux users we met in Washington are ready for a rational, open dialogue, but we're not so sure about the movie industry. The MPAA seems to be deriving too much pleasure from being pricks, from flexing their muscles, and from ranting about teen-aged demons on the Web. ®